lOMoARcPSD|2265983

Case Law PIL 2018 - Scheme case law

Public International Law (Erasmus Universiteit Rotterdam)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by Ujjwal Rajora (rjrajora@gmail.com)
 lOMoARcPSD|2265983

Case law Public International Law 2018

Topic Case Ruling
Chorzow Factory Nature responsibility
-States can be held responsible for wrongful conduct – necessary
collateral to being able to take part in international affairs [responsibility =
‘necessary consequence of a right’]
Tehran Hostages Act or omission
- Omission: Phase 1, state did not act to clear the diplomatic premises art
22(2) VCDR. A state can only be held accountable for an omission
whenever it was under an obligation to act. In this case YES.
State
- Act: Phase 2, state supports the students art 22(1) VCDR.
Responsibility
Nicaragua Effective control
- Effective control needed
- US activities not amounting to effective control, could have been
committed without control of the US.
- US incurring responsibility for their own activities 
obvious breach of non-intervention principle (CIL).
Rainbow Warrior Distress and Force Majeure
- Distress and Force Majeure can preclude wrongfulness (arbitration)
Kadi Smart sanctions
CJEU told SC to remove Kadi from the list, awkward. Therefore
Ombudsperson created by SC res.
Tadic Ad hoc court
Non-use of -Establishing ad hoc court is a measure non-use of force art 41 UN
Force Charter.  so no ultra vires decision SC.
- Art 41 merely lists illustrative examples
- Created tribunal may have primacy
- Kompetenz-Kompetenz

Nicaragua Customary IL and self-defense

- Customary rules on UoF co-exist to UN charter so ICJ has jurisdiction
- Three cumulative requirements self-defense:
1. Imminent armed attack
2. Necessity
Use of Force
3. Proportionality
- Collective self-defense only on explicit request
Oil Platforms Necessity & proportionality self-defense
Namibia Absence voting SC
-If a permanent member is absent, the resolution can be adopted

Red cases not in bundle

Blue cases additional material

Downloaded by Ujjwal Rajora (rjrajora@gmail.com)

 lOMoARcPSD|2265983

Caroline (criteria) Necessity of self-defense

-Instant, overwhelming, leaving no choice of means and no moment for
deliberation.
-NOT applicable if armed attack is not imminent
Jurisdictional Jus Cogens violations – STATE immunity
Immunities of the - State immunity is a procedural norm and Jus Cogens is a substantive
State (Ferrini) norm so Jus Cogens cannot preclude CIL.
Arrest Warrant Incumbent HRSO
- Rationale immunity HRSO: effective performance
- Absolute immunity while in office
Immunities
- No exception for violation of erga omnes norms.
- Four scenarios for prosecution:
1. Prosecution in own state
2. Waiver by own state
3. After a person ceases to hold office, restricted immunity claim
4. Proceedings international criminal court
Opuz v. Turkey Positive obligations
-State has to protect/fulfil for the right to life
Kosovo Advisory Group rights
Opinion -People have the right to self-determination, within this they have the
right to become independent.
Salah Sheekh v. Domestic remedies
NL -The ECtHR is admissible after exhaustion of domestic remedies (art 35
ECHR)
-But if domestic remedies based on existing case law are likely to fail this
Human Rights is not a requirement.
Karpenko Manifestly ill-founded
- Fourth instance case
- The ECtHR is inadmissible if the complaint is manifestly ill-founded.
- This is also when the complaint is about substantive fairness. It has to be
about procedural fairness.
Tyrer Present-day conditions
-The UCHR has to be interpreted in present-day conditions
Radislav Krstic Genocide
- First person sentenced for genocide by ICTY
Nicaragua and Humanitarian intervention
Corfu Channel -UoF for HI cannot be the appropriate method to monitor or ensure such
HI and R2P respect.

Red cases not in bundle

Blue cases additional material

Downloaded by Ujjwal Rajora (rjrajora@gmail.com)

 lOMoARcPSD|2265983

North Sea Negotiations: Good faith

Continental Shelf -Parties are under an obligation to enter negotiations in good faith
Nuclear Weapons Negotiations: Good faith
Dispute -Parties are under an obligation to enter negotiations in good faith
Settlement La Grand Indicate measures
-Indication of provisional measures (41 ICJ Statue), legally binding.

Reservations to Reservations:
Genocide - Principally, there is state consent, so parties that do not want to be
Convention bound by a reservation do not have to be bound.
- A reservation that does not contradict the goal or purpose is allowed.
We want as many states as possible to be bound.
- An objection of another state only counts between the objecting and the
reserving state.
Gabcikovo- Pacta sunt servanda and material breach art 60 VCLT:
Nagymaros - Supervening impossibility of performance art 61 VCLT: No hand in
causing impossibility
- Fundamental change in circumstances art 62: The Court does not
Law of
consider that new developments in the state of environmental knowledge
Treaties
and of environmental law can be said to have been completely
unforeseen
- Pacta sunt servanda important, mutual consent.
-ICJ had jurisdiction by compromis (special agreement).
DRC v. Rwanda Jurisdiction despite reservations
- Genocide convention contains Jus Cogens norms
- The Court cannot conclude that the reservation of Rwanda in question,
which is meant to exclude a particular method of settling a dispute
relating to the interpretation, application or fulfilment of the Convention,
is to be regarded as being incompatible with the object and purpose of
the Convention.

Red cases not in bundle

Blue cases additional material

Downloaded by Ujjwal Rajora (rjrajora@gmail.com)